Ms Hilda Anderson v Yumba-Meta Housing Assoc. Ltd

[2013] FWC 772

[2013] FWC 772

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Hilda Anderson
v
Yumba-Meta Housing Assoc. Ltd
(U2012/8916)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 7 FEBRUARY 2013

Unfair dismissal remedy — conduct issues - whether defence of substance - Full Bench on Re: Sayers - examination of facts alleged.

[1] This matter concerns an application by Ms Hilda Anderson (“the Applicant”) under s.394 of the Fair Work Act 2009 (“the Act”), in which she seeks an unfair dismissal remedy. The Applicant sought this remedy in relation to her dismissal by her employer, Yumba-Meta Housing Association Ltd (“the Respondent”), on 13 June 2012. The application was subject to an unsuccessful conciliation conference on 12 July 2012 and thereafter allocated to me for determination on 24 July 2012.

[2] The delay in bringing the matter on for hearing arose, in part at least, from difficulties experienced by the Applicant as she changed legal representation and complying with the directions timetables as issued. The Applicant repeatedly was granted extensions of time to comply with directions, and often to the considerable inconvenience of the Respondent. I nonetheless approached the Applicant’s predicament with some degree of tolerance as it appears, at least, that she may have mental health issues with which she is dealing over time (some of which may or may not be related to her workplace experiences and others, which may have arisen outside the workplace).

[3] More seriously for the Applicant’s interests was the failure to appear at the hearing on either 21 or 22 November 2012.

[4] Though the Applicant had been in contact with chambers over the course of the directions timetable, had put in a statement and several witness statements as well, and otherwise advised an intention to prosecute her claim, she failed to attend the hearing or seemingly to direct her witness to attend at the notified time.

[5] Efforts were made to contact the Applicant at the time of her non-appearance on 21 November 2012. Several messages were left on her mobile phone number. Emails were sent to the Applicant’s known email address. Checks were made of the court precinct, inquiries made to her former legal representative, and advice from the Aboriginal and Torres Strait Islander Legal Service was sought (as to whether the Applicant’s whereabouts were known). All of this was to no avail. Attendance also was made at adjacent courts to ensure there had been no confusion as to the location of the hearing. But the Applicant was not to be found, nor were her witnesses.

[6] As extensive witness material had been received in this matter, I adjourned the proceeding until the next morning, in an effort to give the Applicant time to make contact with chambers and explain her predicament. No contact was received. No responses to the messages as left had been received from the Applicant. Upon the Applicant’s failure (and the failure of any of her witnesses) to attend on the second day, I dismissed the application (and now give my full reasons).

[7] I add that the Applicant, later on that second day, and after such time as the hearing had been adjourned, left a text message on my Associate’s mobile phone stating that she had been hospitalised that day (and admitted at 10.50 am on her subsequent evidence) and had had a “heart attack” the previous day of the hearing (21 November 2012). The Applicant agitated, in effect, that I should proceed to hear her case.

[8] The Applicant’s evidence (which she came to provide) for her non attendance on the first day was thin. She claimed to have driven to the court (on Walker St), only to have felt ill or had a panic attack. Rather than “collapse in the court room” the Applicant stated that she “decided to head home.” There is no explanation (despite one having been requested) as to why she did not communicate with chambers (either personally or through an agent of one kind or another) at any time over the first day (despite the various messages to do so) until well after the hearing time on the second day.

[9] Nor is there is any explanation as to why the Applicant’s witnesses did not attend the court on either day (which is suggestive of the Applicant's wider evidentiary case being unorganised). The Applicant’s assertion that the witnesses were in attendance on the first day belies the efforts made at the commencement of the hearing (through my Associate and with the assistance of the Respondent who was familiar with each of the witnesses) to locate any one of them (the witnesses) anywhere in the court precinct at the time of the hearing.

[10] The Applicant’s case was not assisted by her having provided a signed letter in her apparent defence which stated, in part, as follows:

“On Wednesday 21st November, again I saw Ms Anderson as the Townsville Ferry Terminal at approximately 1.45 pm. She looked very stressed and lost. When I saw Ms Anderson I went straight over to where she was sitting and sat beside her and asked if she was OK. She said she has seen better days. I asked her how she went in court - Ms Anderson said she didn’t present and that she may be penalised for it. I asked Ms Anderson why she didn’t attend; she then proceeded to tell me she didn’t have anyone to back her up.”

[11] The material the Applicant has provided is unpersuasive as to the case she agitates. There are prima facie inconsistencies within it. For example, Ms Anderson says she was ill and returned home, and that her witnesses presented at the hearing. But the signed letter the Applicant submitted (as cited above) states she was at the ferry terminal at 1.45 pm that day complaining of her witnesses failing to present at the court, and the implications thereof (and with no express reference to any illness as being the cause of the non attendance).

[12] The Applicant's evidence also demonstrates that she was capable of engaging in ordinary discourse with other persons on 21 November 2012 and appreciated her commitments that day. Consequently, there appears to be no reason why she was unable to communicate with chambers about her circumstances (whatever they may have been) at an earlier time than she eventually did.

Consideration

[13] The Full Bench in Re Sayers 1 considered circumstances in which an applicant who had been under medical treatment, seemingly for some time, failed to appear at the hearing as notified. The Full Bench found as follows:

[8] When these events are looked at objectively it is clear that there has been no denial of natural justice. Whether he was too ill to attend the hearing on 7 July or not, it is highly unlikely that he was so incapacitated that he was unable to send a message of any kind. But there is no evidence that he took any action to alert anyone to the fact he would not be attending. Mr Sayer was given an adequate opportunity to be heard. While it was open to the Commissioner to adjourn the matter, either generally or subject to some conditions, his decision to decide the matter in the applicant’s absence was not affected by error.

[9] Mr Sayer also submitted that if he were to be permitted to run his case he would have succeeded. In light of our conclusion on the first ground of appeal it is not necessary that we deal with that submission. When an applicant does not take the opportunity provided to prosecute their application, the application will usually fail. It is difficult to envisage circumstances in which it could be otherwise.

[14] That said, the Full Bench did go on to state that before dismissing an application in circumstances such as this, that:

It may be prudent, where a matter is determined in the absence of the Applicant, for the tribunal to satisfy itself that the Respondent had some defence to the action.

[15] The Full Bench’s reasoning in this regard appears to be that the decision to dismiss the application must be premised on the respondent having “some defence to the action.” Elsewhere in its judgment the Full Bench referred to the respondent having to have a “defence of substance.” 2

[16] Clearly, as the Full Bench found, where a respondent had no “defence of substance,” or lacks “some defence to the action,” or else where its evidentiary case was found to be “frivolous or completing lacking in substance” 3 the application may “take another course” altogether. Of course, interesting issues might arise in a situation where an applicant persistently fails to appear, but the respondent’s defence is frivolous or lacking in substance.

[17] But that aside, the gist of the Full Bench’s reasoning here appears to be that it is necessary to establish prior to dismissing an application under s.394 of the Act whether or not the respondent has a “defence of substance” or “some defence to the action” at least on a prima facie level, or perhaps more.

[18] I say this because the Full Bench makes it clear that in circumstances in which an applicant does not appear at the hearing, a consideration of s.387 of the Act does not apply:

[15] It seems to us that the section is intended to apply when Fair Work Australia is considering matters in issue between the parties to an application. If the application is not contested, or only partly contested, the section may have no or limited application. To take an extreme example, if an applicant abandons their case - ignores notices of listings and directions - the application can be dismissed without the need to apply s.387. Equally, if a respondent were to concede that the termination was harsh, unjust or unreasonable, and put a case on remedy only, a member would be entitled to act on the concession without applying the criteria in s.387.

[16] When, as in this case, the applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account.

...

[20] We stress that our view of the matter is conditioned by the fact that the applicant did not attend the hearing. For that reason no adjudication was required between competing cases. The respondent’s case was the only one that was required to be addressed. Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.

[19] For sake of completeness, I note that paragraph 19 of the Full Bench’s decision in Re: Sayers 4 reads as follows:

[19] For completeness we point out that s.587(1) provides for the dismissal of an application. In this case it would have been consistent with this provision to dismiss the application without examining the merits.

[20] I presume the Full Bench here intends to highlight the power exercised by the tribunal to dismiss an application and not have regard to s.387 of the Act, but only once it is established whether the respondent has a “defence of substance” or “some defence to the action.”

[21] Reasonable minds, of course, might disagree as to what degree of investigation or inquiry is required to establish whether a respondent has a “defence of substance” or “some defence” against the claims.

[22] In light of this, I will set out in the broad the claims and counter claims by the Applicant and the Respondent as they were at the time. I have taken the step of taking up the Respondent’s various materials, if only to ensure as a matter of appropriate procedure I had proper regard to the full range of its concerns and claims.

[23] At the time of her dismissal, the Applicant was employed on a contract of employment for a period between 28 March 2011 and 31 December 2012. The Applicant performed duties as a part time Care Worker at the Reverend Charles Harris Diversionary Centre. She appears to have been engaged possibly as an irregular casual employee at earlier times, commencing in June 2009.

[24] No point was taken by the Respondent that the contractual basis of the employment relationship gave rise to a jurisdictional question. Indeed, the termination provisions of the contract (which include a probationary term) do not give rise to a construction that the contract is anything other than a contract for an outer limit, rather than a contract for a fixed term or period. No other issues were raised or otherwise discerned that might call into question the competency of the application.

[25] As mentioned above, on 13 June 2012 the Respondent terminated the Applicant’s employment. It did so for reason that the Applicant had exhibited unacceptable and inappropriate behaviour, including swearing and threatening conduct, in relation to two employees. Further, the Applicant did not attend meetings for the purpose of dealing with this behaviour, and was said to have provided no explanation or any official documentation as to why she could not so attend the meetings.

[26] The Applicant’s position essentially (as appears from the materials) was that the Respondent had been informed in a timely manner by her then union representative (Ms Michelle Duggan of the AWUEQ) on 1 June 2012 that she (the Applicant) had lodged a workers’ compensation claim. That e-mail advice also stated that Ms Anderson was incapacitated until 26 June 2012, and could not meet with the Respondent until she was medically fit to do so. The Applicant claims to have provided medical certificates for workers’ compensation up to the end of July 2012. There is some overlap in the various dates of the various certificates, and this matter is set out in a little more detail below.

[27] The Applicant argues generally that she was bullied and harassed by the Respondent for reason that she made several complaints to the Respondent’s Board after she felt that such complaints had not been adequately addressed by her direct management.

[28] There is a deal of material attached to Ms Kite’s statements in these proceedings that show the range of matters about which the Applicant has held concerns over time. This includes concerns the Applicant had put in writing about Ms Kite’s managerial style.

[29] The Applicant also provided a number of statements by persons who attested to her good character and, in some cases, also to the non-observance of any misconduct on the Applicant’s part in the workplace.

[30] The Applicant sought by this application to be “compensated for the inconvenienced coursed via [her] ongoing workplace bullying, intimidation and harassment, lost of employment, physical [and] mental health stresses beyond the extreme.” (sic)

[31] The Applicant also sought that three employees - who are central to the incident to be set out subsequently - be dismissed for their direct involvement in the Applicant’s “demise.” These employees were said to have “lied and are corrupt for covering up serious [incidences].” (sic)

[32] The Applicant’s materials included a medical certificate for the period Tuesday 22 May 2012 to Tuesday 24 July 2012 inclusive. That medical certificate stated that Ms Anderson has a medical condition and would be unfit to work or study for that two month period. The medical certificate was signed and dated on that same day. The Applicant was also in possession of a medical certificate completed on 17 May 2012 certifying that for the period 17 May 2012 to 31 May 2012 the Applicant needed to work within various conditions in relation to what appears to be an injury to her arm. Another medical certificate, signed by a different medical practitioner, declared the Applicant to be unfit for duties for the period 18 June 2012 to 20 June 2012. This latter certificate was appended to Ms Kite’s statements.

[33] The Applicant’s materials also included a number of workers’ compensation medical certificates which appear to indicate a case number. The workers compensation claims refer to the arm injury, and in one final claim, lodged on 29 May 2012, the diagnosis related to an anxiety and depression issue. The date of injury is said on the completed workers’ compensation medical certificate to be 18 May 2012, and is said to have arisen from victimisation and stress at work exacerbating what appears to be a prior anxiety and depression condition. It is this workers’ compensation medical certificate that also states that the estimated time to return to normal work duties was two months.

[34] The detail of the Respondent’s position warrants further attention.

[35] Ms Dushy Thangiah, the Respondent’s Chief Executive Officer, claimed that on 3 February 2012, the Applicant attended a staff meeting and requested to raise a number of issues, which was acceded to by Ms Thangiah. The Applicant proceeded, according to Ms Thangiah’s evidence, to raise with the Centre’s Manager, Ms Karen Kite, the appropriateness of her steps in having another staff member direct her in relation to her duties on a particular day.

[36] This matter concerned, according to Ms Kite, her actions in attempting to contact the Applicant on the Applicant’s mobile phone on 31 January 2012. The purpose of the attempted calls was to determine if the Applicant could cover for a shift (given that she was already working that day). The Applicant could not be contacted and messages were left on her answering service. Owing to an extended meeting Ms Kite claims she was unable to contact the Applicant personally and asked a co-worker if she could convey a message to the Applicant to carry out some additional duties. As it was, the Applicant met Ms Kite prior to the time at which the further duties were required and sought permission to be excused from work owing to ill health. No mention was made at that time about any concerns about the message conveyed to her.

[37] According to Ms Thangiah, at the 3 February 2012 meeting when this issue was raised, the Applicant talked over the top of Ms Kite, would not allow her to explain the circumstances, accused her of lying (about making calls to her mobile) and “waved” her mobile phone around, and asserted that Ms Kite had been wrong in her actions. The Applicant would not, it is said, desist in her manner of addressing Ms Kite even when Ms Thangiah intervened and insisted that Ms Kite be given an opportunity to respond.

[38] Ms Thangiah claimed the Applicant’s behaviour was “very intimidating.” Ms Kite said it was “belligerent” and “humiliating” for reason the interaction had occurred in a public context.

[39] A number of statements by staff were tendered in the proceedings that in one way or another generally attested to the belligerency of the Applicant’s conduct at the meeting. One, by Ms Matilda Dorothy Doolah, claimed the Applicant had been “screaming” at Ms Kite and calling her a “liar”. Ms Doolah said the incident was “embarrassing”. Another witness, Ms Leisa Sunnya Barbara Auda, claimed that the Applicant would not listen to Ms Kite’s explanation, spoke in a raised voice and waved her mobile phone about.

[40] At a subsequent meeting to discuss the incident, the Applicant was said to have maintained her mindset, such that Ms Kite left the room in tears because of the nature of the “verbally aggressive” exchange that continued to occur. The Applicant herself thereafter was said to have “stormed” out of the room and past Ms Kite and other staff. During the meeting Ms Kite had shown the Applicant the outgoing calls on her phone to her (the Applicant’s) mobile phone, but the Applicant claimed that she was no longer using that number and persisted to argue her case.

[41] The matter did not resolve itself, at least at one level, until such time the Applicant herself apologised privately about a week later to Ms Kite that she failed to notify a change of mobile phone number to the Respondent, and Ms Kite had not been lying. Though Ms Kite pointed out to the Applicant, she says, that this was not just a private issue but a rather public one, the Applicant was said not to have taken any steps to convey the situation to other staff at the Centre.

[42] Because of the Applicant’s conduct on 3 February 2012, she was given a verbal warning by Ms Thangiah for her unacceptable manner of behaving and the disrespectful manner in which she interacted with Ms Kite. The Applicant was said by Ms Thangiah to have acknowledged her error.

[43] This, according to Ms Thangiah, had not been the first occasion on which the Applicant had been warned for disrespectful behaviour. The Applicant had also received a warning letter in December 2011. It appears further that the Applicant had also been moved from another program, Flora House, because of behavioural concerns in relation to a manager, and non-compliance with policies. 5

[44] In relation to the Flora House incident, the relevant Manager, Ms Catherine Walker, set out evidence of an incident (in November 2010) in which the Applicant’s actions in returning late from a personal appointment in the work car - and being unable to be contacted - had caused difficulties in relation to picking up a referral to the program. In December of that same year, the Applicant was also spoken to in relation to crossing professional boundaries with a client (by accepting food gifts, buying the client a guitar, becoming concerned in the client’s personal affairs and interacting with the client on her personal mobile phone). The Applicant was said to have reacted unprofessionally to this latter concern on Ms Walker’s part (by denying the substance of Ms Walker’s concern and then later stating to Ms Walker she “was going to claim for sitting there listening to [her] talking all this crap”).

[45] I add at this juncture that the Respondent’s Code of Conduct (“the Code”) contains a section headed “Relationship with Clients”, and states the need for staff to maintain professional relationships at all time. Some of the relevant extracts from the Code are set out further below.

[46] Ms Kite’s further evidence was that the Applicant had also made over the course of her employment a number of unsubstantiated complaints about co-workers. These complaints appear to have caused some personal anxieties amongst those about whom she had complained.

[47] In September 2011, Mr Tyrone Yasserie, for example, was said to have been intoxicated on the job, but was subsequently apologised to by the Applicant following an investigation (which exonerated him). The Applicant received a warning (in December 2011) in relation to having made this “serious allegation” without evidence. Ms Dulcie Kawane, another co-worker at the Reverend Charles Harris Diversionary Centre, had been subject to a complaint that she had bullied or harassed the Applicant. She claimed to have been “shocked” by the Applicant’s claims, as they went against her “Christian beliefs.” Other complaints (arising in December 2011) against Ms Susan Mosby and Ms Matilda Doolah had been dismissed after investigation.

[48] Following the incident of 3 February 2012, another incident arose on 10 May 2012, in which the Applicant was said to have again displayed disrespectful behaviour towards Ms Kite, her Manager. It appears the incident concerned a claim by Ms Kite that the Applicant had refused to respond to her questions and then refused to discuss her behaviour with her Manager.

[49] The Applicant attended a meeting subsequently (on 16 May 2012) with Ms Thangiah and Ms Kite. At that meeting the Applicant denied receiving correspondence about the convening of the meeting, only to later accept that she had received a copy of the request in writing directly, it appears. The Applicant also denied the claims about her behaviour as put to her.

[50] At that meeting, the Applicant became agitated, according to Ms Thangiah, and stood up and said, “both your fucking heads would roll if the community hears about this and I will get you for this,” and was said to have “stormed out” of the meeting, slamming a door behind her. 6

[51] Correspondence was directed to the Applicant on 18 May 2012 entailing “a written first and final warning” regarding her conduct on 10 May 2012.

[52] On the same day - 18 May 2012 - the Applicant also was invited to attend a meeting to be held on 21 May 2012 to discuss her behaviour further and to show cause why she should not be dismissed regarding her “inappropriate behaviour” on 16 May 2012.

[53] The correspondence from Ms Kite at this time indicated that the Applicant had been stood down on pay (as per a telephone conversation with the Applicant held on 17 May 2012). The Applicant was invited to bring a support person.

[54] The Applicant did not appear at the meeting according to Ms Thangiah and Ms Kite owing to illness and provided a medical certificate to that end. The medical certificate was issued by a Dr Natalia Smith to cover the period 18 May 2012 – 25 May 2012 (and was said to have been received by email from the Applicant’s AWUEQ representative, Ms Michelle Duggan).

[55] The meeting was adjourned until 25 May 2012.

[56] The Applicant did not attend the meeting. No further medical certificate had been received as at 28 May 2012, according to Ms Kite.

[57] The Applicant was then invited in writing (by correspondence dated 30 May 2012) to show cause - at a further meeting now to be conducted on 4 June 2012 - why she should not be dismissed.

[58] The Applicant did not attend the meeting.

[59] On 13 June 2012 the President of the Yumba-Meta Housing Association Ltd, Mr Ernest Hoolihan, wrote to the Applicant stating that as she had breached the Respondent’s Code of Conduct (particularly those sections dealing with “Respect for Persons” and “Relationships with Staff”) and had not attended the show cause meeting scheduled for 4 June 2012, the Applicant’s employment was “terminated forthwith.”

[60] In these regards, the Respondent’s Code of Conduct relevantly reads as follows:

Relationships with other staff must promote mutual respect. All staff are required to contribute to a safe and healthy workplace that is free from harassment and any form of discrimination.

[...]

Staff are to be cooperative and respectful in their dealings with one another and are at all times expected to work as a team with colleagues to achieve the goals of Yumba-Meta Housing Association Ltd.

[...]

Statements that may be perceived to criticise other employees or YMHAL are to be made in an appropriate forum and manner, and constructive in manner.

[...]

Staff shall treat all clients, fellow staff and members of the public respectfully and with proper regard to their rights, entitlements, duties and obligations and shall at all times act professionally in the performance of their official duties.

[61] The Respondent claims that apart from as mentioned above (in relation to the non appearance at the meeting of 21 May 2012) no other medical certificates were received until after the dismissal correspondence had been dispatched on 13 June 2012. More specifically, the Respondent indicated – through Ms Thangiah’s evidence – that it did not receive the Applicant’s medical certificate, signed by Dr Sarah Larkins on 22 May 2012, until 9 July 2012 (as part of the Fair Work Australia conciliation process). The original was said never to have been provided by the Applicant. The Applicant was also said not to have indicated to anyone that she had injured herself (that is her shoulder, as referred to above) at work on 16 May 2012, the day before she had been stood down (as a result of the telephone conversation 17 May 2012 it seems). I see nothing in the Applicant’s materials - on their face - that supports the claim that the Respondent was advised of the existence of the medical certificate. The communication to the Respondent on 1 June 2012 from the AWUEQ was only to the extent of a reference to a workers’ compensation claim.

[62] The Respondent also contends that medical certificates relating to workers’ compensation claims were not received until after 19 June 2012.

[63] In all, the Respondent claims it took the decision it did to dismiss the Applicant on 13 June 2012 without being in receipt of any actual medical certification to the effect that the Applicant had been unfit to present for work (or otherwise) at the time. And the decision it took, so it claims in effect, was a reasonable decision in the circumstances, and one that evidences no harshness or injustice.

[64] I add finally, Ms Kite also claims that she had become aware that following the decision to stand the Applicant down on 17 May 2012, the Applicant contacted staff and her union representative in an effort to organise a meeting “to get rid off” (sic) the Centre’s Manager (Ms Kite herself).

[65] The above is a summary of some of the evidence only. The Applicant claims further that she had been the subject of some injustices for a period of time, the affect of which has been exacerbated by her distressing personal history.

[66] But that said, the above summary is sufficient to demonstrate the broad nature of the arguments to be had in the matter.

Conclusion

[67] It appears to me, given the discussion above, that the Respondent has a “defence of substance” or “some defence to the action,” as the Full Bench in Re: Sayers sets out, against the claims made by the Applicant.

[68] Further, the Applicant did not present for the hearing on 21 November 2012. She did not contact chambers at all that day despite the circumstances as set out. Her subsequent efforts to persuade me that I should reconsider her circumstances have been unpersuasive. I have discussed these circumstances above.

[69] Section 587(1) of the Act reads as follows:

587 Dismissing applications

(1) Without limiting when FWA may dismiss an application, FWA may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[....]

(3) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application. [my emphasis]

[70] In such circumstances as I have discussed above I have exercised my powers under s.587(1) of the Act to dismiss the application under s.394 of the Act.

SENIOR DEPUTY PRESIDENT

Appearances

Mr A. Collins, for the Respondent

No appearance for the Applicant

Hearing

2012.

21 & 22 November.

Final Written Submissions

2013.

30 January.

 1   [2011] FWAFB 7498.

 2   [2011] FWAFB 7498, [16].

 3   [2011] FWAFB 7498, [16].

 4   [2011] FWAFB 7498.

 5   Exhibit DT-3.

 6   Exhibit DT-3.

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